This blog focuses on news and information regarding practice in the federal courts in the Eastern District of California, with a special emphasis on criminal and civil rights cases.

Blog Author

John Balazs is an attorney in Sacramento, California, specializing in criminal defense, including appeals, habeas corpus, pardons, expungements, and civil forfeiture actions. After graduating from UCLA Law School in 1989, he clerked for Judge Harry Pregerson of the U.S. Court of Appeals for the Ninth Circuit. John was an Assistant Federal Defender in Fresno and Sacramento from 1992-2001. He currently serves as an adjunct professor in clinical trial advocacy at the University of the Pacific McGeorge School of Law. Please email EDCA items of interest to Balazslaw@gmail.com. Follow me on twitter @balazslaw.

Disclaimer

This blog is for informational purposes only. Nothing in this blog should be construed as legal advice. The law can change rapidly and information in this blog can become outdated. Do your own research or consult with an attorney.

Schweder marijuana case

April 15, 2015

The Court reset the time for today's hearing in the Schweder marijuana case from 9 am to 10 am. It's in Judge Mueller's courtroom on 15th floor. Still no ruling on defendants' motion to dismiss, which challenges the constitutionality of the Feds classifying marijuana as a schedule I controlled substance with no accepted medical use.

March 21, 2015

Yesterday, in United States v Schweder, et. al., No. 2:11-cr-0449-KJM,Judge Mueller cancelled the March 25 status conference and scheduled a new conference for April 15, at 9:00 a.m. in courtroom 3. This is the case where the court held an evidentiary hearing on the defense's motion to dismiss federal marijuana charges on the grounds that (1) the feds' classification of marijuana as a Schedule I controlled substance without any accepted medical use is unconstitutional; and (2) the uneven enforcement of federal marijuana laws violates the Equal Sovereignty principle in the Constitution.

So for those waiting for the decision, it appears you'll need to wait a little longer. I expect a decision in writing before the April 15 status conference. While you wait, attorneys out there may want to read Reid Murdock's 2/15/15 piece on this case in the Michigan Journal of Race & Law, entitled "It's High Time for the Defense Bar to Bring Race-Based Equal Protection Challenges to Federal Cannabis Scheduling." Pun intended, I assume.

March 09, 2015

This morning, Judge Mueller issued a minute order postponing the status conference on her own in United States v. Schweder from March 11 to March 25, 2015, at 9:00 a.m. in courtroom 3. I'd guess she needs more time to finalize her ruling on defendants' motion to dismiss that challenges (1) the constitutionality of classifying marijuana as a Schedule I controlled substance; and (2) the uneven enforcement of federal marijuana laws as violating the constitutional Equal Sovereignty principle. I would still expect she will issue her ruling in writing before the March 25 status conference. All posts on this case are available here.

February 11, 2015

In a packed courtroom, Judge Mueller heard final arguments on the defense's motion challenging the constitutionality of the federal classification of marijuana as an illegal Schedule I controlled substance. The judge did not rule on the motion, stating that she would do so as soon as she can and within the next 30 days.

The defense emphasized how irrational it is for marijuana to be prohibited under federal law as having "no accepted medical use," now that 23 states and the District of Columbia have legalized medical marijuana. The prosecutor admitted that there is "encouraging research" showing marijuana's medical value but claimed we're "not there yet."

January 23, 2015

The district court moved the final arguments on the Schweder Schedule I marijuana motion to dismiss from February 4 to a special session on February 11, at 2:30 p.m., before Judge Mueller. The court has scheduled one hour for arguments.

The court also granted the defense's motion to file an oversized reply brief.

January 21, 2015

Today, the government filed its Gov't Post-Hearing Reply Brief and the defense filed this Defense Post-Hearing Reply Brief with a request to filed an oversized brief. In this Doc 379- Order, the district court granted in part, denied in part, the defense's application to file a supplemental declaration of Jennie Stormes. Final arguments are still scheduled for February 4, 2015, at 9:00 a.m. before Judge Mueller.

January 01, 2015

Yesterday, the parties filed their Schweder case post-evidentiary hearing briefs, available here: Gov't Brief, Amended Defense Brief [1/7/15: I replaced original brief here with amended brief filed 1/5/15, which includes inadvertently omitted tables], and Defense Motion to File Oversized Brief [1/7/15: court granted motion for oversized brief on 1/5/15]. To recap, the evidentiary hearing concerned whether the government's continued inclusion of marijuana as a Schedule I controlled substance, i.e., one with no accepted medical use and a high potential for abuse, violates the guarantee of equal protection of our laws inherent in the Fifth Amendment's Due Process Clause. Although not the subject of the evidentiary hearing, the defense also argues that the federal government's prosecution of medical marijuana violates the constitutional principle of Equal Sovereignty. The Court's final ruling on the defense's motion to dismiss is not expected until after the February 4 arguments. [A few weeks ago, the defense also filed this Supplemental Declaration of Jennie Stormes. The district court has yet to rule on the government's objection to it.]

In short, the defense brief argues that the evidence failed to support the continued inclusion of marijuana in Schedule I under either strict scrutiny or active rational basis review and the government's state-based enforcement of federal drug laws in marijuana cases violates Equal Sovereignty. Defense attorneys Zenia Gilg and Heather Burke do a good job of incorporating recent federal government actions into their constitutional arguments, most notably Section 538 of the Consolidated and Further Continuing Appropriations Act, 2015, which President Obama signed into law on December 16, 2014. This new law bars the use of U.S. Department of Justice funds to prevent a number of listed states "from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana." This law not only supports the defense's Equal Sovereignty argument, but as the defense argues, "how is it Congress can justify a finding that marijuana has no medical benefit while demanding that the distribution of medical marijuana be protected from federal government interference. This is not only irrational, it is absurd." Defense Brief, at 36.

The government counters that there is a rational basis for marijuana's continued exclusion in Schedule I, so that the defense's equal protection argument fails. It also argues that (1) the defendants lack standing to challenge marijuana's Schedule I listing; (2) the D.C. Circuit has exclusive jurisdiction over classification challenges; and (3) the government's conduct does not violate Equal Sovereignty principles. The government predictably ignores the Section 538 amendment that prohibits funding of federal government attempts to interfere with state medical marijuana laws.

For those who have been asking me, it's too early to tell how Section 538 will impact current, past, and future federal medical marijuana cases. But this Schweder briefing is an early example of how defense attorneys can use it to challenge federal medical marijuana prosecutions.

December 16, 2014

Last week, the district court issued this minute order that postpones the briefing and hearing regarding the Schedule I marijuana evidentiary hearing in the Schweder, et. al., case for about two weeks:

MINUTE ORDER (Text Only) issued by Relief Courtroom Deputy J. Streeter for District Judge Kimberly J. Mueller on 12/11/2014: Pursuant to the parties stipulation [370] and good cause appearing, the Initial Post-Hearing Briefs filing date, regarding defendant Brian Justin Pickard, is extended to 12/31/2014; Simultaneous Responsive Briefs filing date is extended to 1/21/2015 and the Motion Hearing is CONTINUED to 2/4/2015 at 09:00 AM in Courtroom 3 (KJM) before Judge Kimberly J. Mueller.